Supreme Court Upholds Detention Orders in Smuggling Case: Union of India vs. Ankit Ashok Jalan (2019)

Introduction

Date of the Judgment: 22 November 2019

Citation: 2019 INSC 1109

Judges: Uday Umesh Lalit, J., Indira Banerjee, J., M.R. Shah, J.

Can a person already in jail be detained under preventive detention laws? The Supreme Court of India recently addressed this crucial question in a case involving alleged gold smuggling. The court examined whether a detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) is valid when the person is already in judicial custody. This judgment clarifies the circumstances under which such detention orders can be issued and the extent of judicial review. The bench consisted of Justices Uday Umesh Lalit, Indira Banerjee, and M.R. Shah, with the majority opinion authored by Justice M.R. Shah.

Case Background

On June 9, 2019, the Directorate of Revenue Intelligence (DRI), Kolkata, intercepted one Anand near Dankuni Toll Plaza, West Bengal. Anand was traveling on a bus from Siliguri to Kolkata and was found carrying 8 kg of foreign-origin gold, valued at approximately ₹2.71 crores.

Anand, in his statements recorded on June 9 and 10, 2019, revealed that he was hired by Ashok Kumar Jalan and Amit Jalan (the detenus) to receive the smuggled gold from the Indo-Bhutan border at Jaigaon. He was to transport and deliver it to Kolkata and Delhi.

The detenus were apprehended by DRI officers on June 10, 2019, at the Quest Mall in Kolkata and taken to the DRI office. Their self-incriminating confessions were recorded under Section 108 of the Customs Act, 1962. They were formally arrested on June 11, 2019, under Section 104 of the same Act.

On June 12, 2019, the detenus were produced before the Chief Metropolitan Magistrate, Kolkata, who rejected their bail plea and remanded them to judicial custody until June 18, 2019. While the detenus were in custody, the Detaining Authority issued detention orders on July 1, 2019, which were served on the detenus on July 2, 2019. The relied-upon documents were provided on July 4, 2019.

The detenus submitted their representations against the detention orders on July 7, 2019. Ankit Ashok Jalan, son of Ashok Kumar Jalan and brother of Amit Jalan, filed a writ petition challenging the detention orders. The main contention was that the detention orders were illegal as the detenus were already in judicial custody, and there was no imminent possibility of their release on bail. It was also argued that the Detaining Authority did not consider a vital document, namely, the retraction petition of Anand.

Timeline:

Course of Proceedings

The High Court of Delhi allowed the writ petition filed by Ankit Ashok Jalan and quashed the detention orders. The High Court held that the Detaining Authority failed to properly consider the imminent possibility of the detenus being released on bail. The High Court also noted that the Detaining Authority did not consider the retraction petition of Anand, which was a vital document.

The Union of India, through the Detaining Authority, appealed to the Supreme Court against the High Court’s decision. The original writ petitioner also appealed, challenging the High Court’s failure to address other grounds raised in the writ petition.

Legal Framework

The case primarily revolves around the interpretation and application of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) and Article 22(5) of the Constitution of India.

Section 13 of the COFEPOSA Act states:

“No suit, prosecution or other legal proceeding shall lie against any person for anything in good faith done or intended to be done under this Act.”

The petitioners in Writ Petition (Criminal) Nos. 204/2019, 206/2019, and 209/2019 argued that the word “or” in Section 13 should be read as “and” to ensure that only actions done in good faith are protected.

Article 22(5) of the Constitution of India provides:

“When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.”

Arguments

Appellant (Union of India) Arguments:

• The High Court’s judgment is contrary to the law laid down by the Supreme Court in Union of India v. Dimple Happy Dhakad.
• The Detaining Authority was aware that the detenus were in custody and there was an immediate possibility of their release.
• The Detaining Authority had sufficient material to believe that the detenus would continue to engage in prejudicial activities if released.
• The subjective satisfaction of the Detaining Authority was duly recorded, considering the custody, likelihood of release, and propensity to engage in prejudicial activities.
• The retraction petition of Anand was not available to the Detaining Authority when the detention orders were passed.
• Even if the retraction petition was available, its non-consideration would not vitiate the detention orders, as the detenus’ retractions were considered.
• The detenus were released on bail after the High Court quashed the detention orders, proving the apprehension of the Detaining Authority.
• The retraction statement of Anand is not a vital document as the detenus’ retractions were considered.
• Anand reiterated his earlier statements after his release, stating that the retraction was a mistake.

Respondent (Detenus) Arguments:

• The High Court correctly quashed the detention orders as the Detaining Authority failed to consider the imminent possibility of release on bail.
• The statements of Anand are the basis of the case, and if excluded, nothing would survive against the detenus.
• The Detaining Authority did not consider the retraction made by Anand, even though it was aware of it.
• The retraction statement of Anand was not supplied to the detenus, violating their right to effective representation.
• The document supplied as a “copy of retraction petition” was actually Anand’s bail application.
• The retraction petition of Anand was part of the court record before the detention orders were issued, thus the authorities were aware of it.
• The Detaining Authority’s satisfaction regarding the imminent possibility of release was not based on any cogent material.
• The bail application of the detenus was rejected, and no further bail application was pending.
• The satisfaction of the Detaining Authority cannot be an ipse dixit.
• The question of severability under Section 5-A of COFEPOSA was not pleaded by the appellant.
• There was a delay in deciding the representation, which also vitiates the detention orders.

Submissions by Parties

Issues Framed by the Supreme Court

The Supreme Court considered the following issues:

1. Whether the High Court was justified in quashing the detention orders on the ground that the Detaining Authority failed to consider the imminent possibility of the detenus being released on bail.
2. Whether the non-consideration of the retraction statement of Anand vitiates the detention orders.

Treatment of the Issue by the Court

Authorities

Cases Relied Upon by the Court:

• Union of India v. Dimple Happy Dhakad, 2019 SCC OnLine SC 875, Supreme Court of India – Considered and followed to determine the validity of detention orders against persons in custody.
• Noor Salman Makani v. Union of India, (1994) 1 SCC 381, Supreme Court of India – Relied upon to establish that a detention order can be valid even if the detenu is in jail and the authority has considered the possibility of release.
• Kamarunnisa v. Union of India, (1991) 1 SCC 128, Supreme Court of India – Referred to for the three-pointer test for passing a detention order against a person in judicial custody.
• Merugu Satyanarayana v. State of A.P., (1982) 3 SCC 301, Supreme Court of India – Cited to support the principle that preventive detention is permissible even when a person is in custody.
• State of Gujarat v. Sunil Fulchand Shah, (1988) 1 SCC 600, Supreme Court of India – Cited to support the principle that preventive detention is permissible even when a person is in custody.
• Vijay Kumar v. Union of India, (1988) 2 SCC 57, Supreme Court of India – Cited to support the principle that preventive detention is permissible even when a person is in custody.
• Abdul Sathar Ibrahim Manik v. Union of India, (1992) 1 SCC 1, Supreme Court of India – Cited to support the principle that preventive detention is permissible even when a person is in custody.
• Veeramani v. State of T.N., (1994) 2 SCC 337, Supreme Court of India – Cited to support the principle that preventive detention is permissible even when a person is in custody.
• Baby Devassy Chully v. Union of India, (2013) 4 SCC 531, Supreme Court of India – Cited to support the principle that preventive detention is permissible even when a person is in custody.
• Rameshwar Shaw v. District Magistrate, AIR 1964 SC 334, Supreme Court of India – Relied upon to establish that detention of a person in jail is valid if the authority is satisfied that detention is necessary after release.
• N. Meera Rani v. Government of T.N., (1989) 4 SCC 418, Supreme Court of India – Cited to support the principle that detention is valid if there is a likelihood of release and the detenu indulging in prejudicial activities.
• Union of India v. Paul Manickam, (2003) 8 SCC 342, Supreme Court of India – Considered in the context of preventive detention against a person in custody.
• Huidrom Konungjao Singh v. State of Manipur, (2012) 7 SCC 181, Supreme Court of India – Considered in the context of preventive detention against a person in custody.
• Dharmendra Suganchand Chelawat v. Union of India, (1990) 1 SCC 746, Supreme Court of India – Considered in the context of preventive detention against a person in custody.
• V.C. Mohan v. Union of India, (2002) 3 SCC 451, Supreme Court of India – Cited by the respondent to argue that non-supply of the retraction statement vitiates the detention order.
• Deepak Bajaj v. State of Maharashtra, (2008) 16 SCC 14, Supreme Court of India – Cited by the respondent to argue that non-supply of the retraction statement vitiates the detention order.
• Rushikesh Tanaji Bhoite v. State of Maharashtra, (2012) 2 SCC 72, Supreme Court of India – Cited by the respondent to argue that non-supply of the retraction statement vitiates the detention order.
• T.V. Sravanan v. State, (2006) 2 SCC 664, Supreme Court of India – Cited by the respondent to argue against the validity of the detention order.
• Rekha v. State of T.N., (2011) 5 SCC 244, Supreme Court of India – Cited by the respondent to argue against the validity of the detention order.
• Raverdy Marc Germain Jules v. State of Maharashtra, (1982) 3 SCC 135, Supreme Court of India – Relied upon by the appellant to argue that non-consideration of the retraction statement does not vitiate the detention order.
• Prakash Chandra Mehta v. Commissioner and Secretary., Government of Kerala, (1985) Suppl. SCC 144, Supreme Court of India – Relied upon by the appellant to argue that failure to place certain documents may not be fatal to a detention order.
• Madan Lal Anand v. Union of India, (1990) 1 SCC 81, Supreme Court of India – Relied upon by the appellant to argue that failure to place certain documents may not be fatal to a detention order.
• A. Sowkath Ali v. Union of India, (2000) 7 SCC 148, Supreme Court of India – Cited by the respondent to argue against the applicability of Section 5-A of COFEPOSA.
• P. Saravanan v. State of T.N., (2001) 10 SCC 212, Supreme Court of India – Cited by the respondent to argue against the applicability of Section 5-A of COFEPOSA.

Legal Provisions Considered by the Court:

• Section 13 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) – Regarding protection of actions done in good faith.
• Section 108 of the Customs Act, 1962 – Regarding recording of statements.
• Section 104 of the Customs Act, 1962 – Regarding arrest under the Customs Act.
• Article 22(5) of the Constitution of India – Regarding the rights of a person under preventive detention.
• Section 5-A of COFEPOSA – Regarding severability of detention orders.

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• Union of India v. Dimple Happy Dhakad [2019 SCC OnLine SC 875]* – Followed to determine the validity of detention orders against persons in custody.
• Noor Salman Makani v. Union of India [(1994) 1 SCC 381]* – Relied upon to establish that a detention order can be valid even if the detenu is in jail and the authority has considered the possibility of release.
• Kamarunnisa v. Union of India [(1991) 1 SCC 128]* – Referred to for the three-pointer test for passing a detention order against a person in judicial custody.
• Merugu Satyanarayana v. State of A.P. [(1982) 3 SCC 301]* – Cited to support the principle that preventive detention is permissible even when a person is in custody.
• State of Gujarat v. Sunil Fulchand Shah [(1988) 1 SCC 600]* – Cited to support the principle that preventive detention is permissible even when a person is in custody.
• Vijay Kumar v. Union of India [(1988) 2 SCC 57]* – Cited to support the principle that preventive detention is permissible even when a person is in custody.
• Abdul Sathar Ibrahim Manik v. Union of India [(1992) 1 SCC 1]* – Cited to support the principle that preventive detention is permissible even when a person is in custody.
• Veeramani v. State of T.N. [(1994) 2 SCC 337]* – Cited to support the principle that preventive detention is permissible even when a person is in custody.
• Baby Devassy Chully v. Union of India [(2013) 4 SCC 531]* – Cited to support the principle that preventive detention is permissible even when a person is in custody.
• Rameshwar Shaw v. District Magistrate [AIR 1964 SC 334]* – Relied upon to establish that detention of a person in jail is valid if the authority is satisfied that detention is necessary after release.
• N. Meera Rani v. Government of T.N. [(1989) 4 SCC 418]* – Cited to support the principle that detention is valid if there is a likelihood of release and the detenu indulging in prejudicial activities.
• Union of India v. Paul Manickam [(2003) 8 SCC 342]* – Considered in the context of preventive detention against a person in custody.
• Huidrom Konungjao Singh v. State of Manipur [(2012) 7 SCC 181]* – Considered in the context of preventive detention against a person in custody.
• Dharmendra Suganchand Chelawat v. Union of India [(1990) 1 SCC 746]* – Considered in the context of preventive detention against a person in custody.
• V.C. Mohan v. Union of India [(2002) 3 SCC 451]* – Not followed. The Court distinguished this case and held that non-supply of retraction was not fatal to the detention order.
• Deepak Bajaj v. State of Maharashtra [(2008) 16 SCC 14]* – Not followed. The Court distinguished this case and held that non-supply of retraction was not fatal to the detention order.
• Rushikesh Tanaji Bhoite v. State of Maharashtra [(2012) 2 SCC 72]* – Not followed. The Court distinguished this case and held that non-supply of retraction was not fatal to the detention order.
• T.V. Sravanan v. State [(2006) 2 SCC 664]* – Not followed. The court distinguished this case and held that the detention order was valid.
• Rekha v. State of T.N. [(2011) 5 SCC 244]* – Not followed. The court distinguished this case and held that the detention order was valid.
• Raverdy Marc Germain Jules v. State of Maharashtra [(1982) 3 SCC 135]* – Relied upon to argue that non-consideration of the retraction statement does not vitiate the detention order.
• Prakash Chandra Mehta v. Commissioner and Secretary., Government of Kerala [(1985) Suppl. SCC 144]* – Relied upon to argue that failure to place certain documents may not be fatal to a detention order.
• Madan Lal Anand v. Union of India [(1990) 1 SCC 81]* – Relied upon to argue that failure to place certain documents may not be fatal to a detention order.
• A. Sowkath Ali v. Union of India [(2000) 7 SCC 148]* – Not specifically addressed.
• P. Saravanan v. State of T.N. [(2001) 10 SCC 212]* – Not specifically addressed.

The Supreme Court overturned the High Court’s decision, holding that the detention orders were valid. The Court reasoned that:

• The Detaining Authority was aware that the detenus were in judicial custody.
• The Detaining Authority had sufficient material to believe that the detenus were likely to be released on bail and would engage in prejudicial activities if released.
• The retraction petition of Anand was not available to the Detaining Authority when the detention orders were passed.
• The non-consideration of the retraction petition did not vitiate the detention orders.
• The detenus were granted bail on the same day that the High Court quashed the detention orders, proving that the apprehension of the Detaining Authority was well-founded.

The Court emphasized that even if a person is in judicial custody, they can be preventively detained if there is a likelihood of their release and a possibility of them engaging in prejudicial activities. The Court also clarified that the non-consideration of a document that was not available to the Detaining Authority at the time of passing the order does not vitiate the order.

Final Order

The Supreme Court allowed the appeals filed by the Union of India and set aside the judgment of the High Court. The Court upheld the detention orders issued by the Detaining Authority.

Legal Principles Established:

• Preventive detention is permissible even if the detenu is in judicial custody, provided there is a likelihood of their release and a possibility of them engaging in prejudicial activities.
• The Detaining Authority must be aware of the detenu’s custody and the possibility of release.
• The Detaining Authority must have sufficient material to believe that the detenu would engage in prejudicial activities if released.
• The non-consideration of a document that was not available to the Detaining Authority at the time of passing the order does not vitiate the order.
• The subjective satisfaction of the Detaining Authority must be based on available material and not an ipse dixit.

Flowchart of the Case